Citation Nr: 21021408 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 17-30 285 DATE: April 12, 2021 REMANDED Entitlement to service connection for a right shoulder disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from April 1976 to November 1986. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2016 rating decision of a Department of Veterans Affairs Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a February 2020 Board video conference hearing. A transcript of the hearing has been associated with the claims file. Previously, the claim was before the Board in April 2020 and was remanded for additional development. The Veteran’s outstanding VA treatment records and an updated VA examination have been associated with the claims file. However, as discussed below, the Board’s prior remand directives have not been substantially complied with, and as such the case is again before the Board and additional development is warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). During the course of the appeal entitlement to service connection for a low back disability was granted in an October 2020 rating decision effective November 7, 2013. As such represents a full grant of benefits sought on appeal this issue is no longer before the Board. Entitlement to service connection for a right shoulder disability The Veteran contends that service connection is warranted for a right shoulder disability. Regrettably, another remand is warranted to comply with the prior remand directives. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As such, another remand is warranted for additional development and to obtain a supplemental VA examination. Previously, the claim was before the Board in April 2020 and as part of the development associated with the prior remand the Veteran was sent notice in April 2020 requesting he provide clarification of any dates and locations of the reported in-service motor vehicle accidents. The Veteran was sent follow up correspondence in July 2020. The Veteran reported that he fell out of a tree while serving in Germany in 1980-81 and that he was involved in two in-service car accidents in April 1985 and in July/August 1985 in Pike and Frankfort counties. The Veteran reported that the local police departments indicated that records from 1985 have since been destroyed and are no longer available. Service treatment records including the results of a September 1986 physical examination are silent for any shoulder or other injuries in accidents. However, the RO did not fully develop the Veteran’s contentions as directed by the prior remand. The Veteran testified in February 2020 that these car accidents occurred in government vehicles while he was working as a recruiter stationed at an Army Recruiting Battalion in Beckley, West Virginia. While records from the local police department have since been destroyed, the RO has not attempted to obtain any federal government records relating to these incidents. Specifically, the prior remand directed the RO to contact the National Personnel Records Center (NPRC) and the Joint Services Records Research Center Division (JSRRC) or any other appropriate government agencies to obtain these outstanding accident reports. Then, if the accident reports are unavailable a memorandum of unavailability was to be associated with the claims file. Further, the Veteran was afforded a VA examination in September 2020. The examiner noted that it is less likely than not that the Veteran’s current right shoulder disability was caused by an in-service injury, event, or disease. The examiner noted that an injury to the right shoulder is a likely etiology of his current disability; however, an injury to the right shoulder could not be located in the Veteran’s service treatment records (STRs) and a nexus could not be established. The examiner noted that the Veteran’s acromioclavicular joint osteoarthrosis is likely secondary to his age or a right shoulder injury and a nexus is not present due to a lack of documentation of a right shoulder injury. The Board notes that the VA examiner provided a conflicting and incomplete rationale for the conclusions reached noting that the etiology of the Veteran’s right shoulder is likely an injury but finding that due to an absence of treatment in the Veteran’s service treatment records a nexus could not be established. The examiner failed to fully address the Veteran’s lay statements of record, including his reports of right shoulder pain that began in service and has continued worsening over time. Further the VA examiner failed to fully consider the Veteran’s lay statements reporting ongoing shoulder symptomology and to fully address direct and presumptive service connection. As such a remand is warranted for a supplemental VA examination. The matter is REMANDED for the following action: 1. Obtain the Veteran’s outstanding accident reports and other relevant documents relating to the reported April 1985 and July/August 1985 motor vehicle accidents while driving government owned vehicles in Beckley, West Virginia. Contact the National Personnel Records Center (NPRC) and the Joint Services Records Research Center Division (JSRRC) or other appropriate government agencies such as Army law enforcement or Army equipment accountability agencies to obtain these outstanding records. The AOJ must document their efforts to obtain the accident reports. If the accident reports are unavailable and further attempts to obtain a copy of the accident reports are deemed to be futile, a memorandum of unavailability should be associated with the claims file. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s right shoulder disability and whether: (a.) Is it at least as likely as not (a 50 percent probability ot greater) that the Veteran’s current right shoulder acromioclavicular joint osteoarthrosis and degenerative arthritis is caused by an in-service injury, event, or disease? (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s right shoulder arthritis (1) began during active service, (2) manifested within the applicable presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomology since service? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Attention is invited to the VA examination in September 2020 noting that it is less likely than not that the Veteran’s current right shoulder disability was caused by an in-service injury, event, or disease. The examiner noted that the Veteran’s acromioclavicular joint osteoarthrosis is likely secondary to his age or a right shoulder injury and a nexus is not present due to a lack of documentation of a right shoulder injury. In addition, attention is invited to the Veteran’s February 2020 testimony and associated lay statements noting he was involved in two motor vehicle accidents in April 1985 and July/August 1985 while stationed at the Army Recruiting Station in Beckley, West Virginia. The Veteran testified to ongoing right shoulder pain and symptomology that began in-service and has continued since, worsening over time. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.R. Kardian, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.